When Your Employee Can’t Work–But Still Wants the Job Back…

Have you ever had an employee that can’t come back to work, but wants their job back, anyway? We hear all the time about employees out on FMLA leave or leave under the ADA are entitled to job protection–but that’s not always so. Yes, there are limits. Even the FMLA and ADA requirements (and similar requirements under many States’ laws) are not absolute. Wait a minute. If an employee isn’t 100% healed, isn’t s/he entitled to reasonable accommodations so s/he can do his/her job? Well, yes, usually, but not always. So when don’t you have to reinstate an employee who’s been out on leave? Read on and see… Yes, you’ve guessed it. I have a real, live case example. (At least it was a real live case up until the court handed down its written decision.) The case is McAllister v. Innovation Ventures LLC dba Living Essential, No. 20-1779 (7th Cir., Dec. 30, 2020). In brief, here’s what went down:

Paula McAllister, a machine operator at Innovation Ventures, was seriously injured in a car accident in June 2016. Innovation Ventures, LLC provided her with medical leave and short-term disability benefits while she received treatment. She had spinal surgery for head and neck injuries as well as a herniated disc, spinal cord compression, central cord syn-drome (which often weakens motor and sensory functioning), a closed-head injury, and a “complex,” “multi-direction laceration.” As I said, she was seriously injured. Her doctors repeatedly stated that she would not be able to return to work in the near future, eventually concluding that she could not return to work until at least February 2017.

Ms. McAllister asked Innovation’s HR Department if she could return to work, before receiving clearance and she was told, “No”. Although she wanted to return to work, she still experienced dizziness, memory loss, dizziness, difficulty “getting words out” and balance issues. HR advised her in October 2016 that her FMLA was expiring, and that per its policy, if she could not return to work after 6 months she would be terminated. Ultimately, Innovation terminated her employment in December 2016. Ms. McAllister applied for and received long-term disability benefits until October 2018, when the insurance carrier determined she no longer had functional deficits that would impede her from working again as a machine operator. (She also applied for Social Security Disability Insurance benefits).

You know what’s coming, right? Ms. McAllister sued Innovation for failure to provide reasonable accommodations under the ADA, among other discrimination allegations. Innovation moved for summary judgment. The US District Court granted the motion and the 7th Circuit Court of Appeals affirmed.

I guess you don’t need me to tell you that this case was a “win” for the employer (at least if you discount having to hire attorneys and pay them lots and lots of money to get this result). But why did the employer prevail in this case? Title I of the ADA (that’s the chapter dealing with employment issues) protects qualified individuals with disabilities. Certainly, Ms. McAllister was an individual with a disability. What does it mean to be qualified, though? The employee has to be able to perform the essential functions of the job in question, either with or without a reasonable accommodation. The evidence showed that Ms. McAllister could not perform her job’s essential functions even with a reasonable accommodation. As such, she was not qualified to perform her job, and as such, she was not protected under the ADA.

Wait. Isn’t time off a reasonable accommodation under the ADA? Yes, sometimes. If a modest amount of leave would enable an employee to recuperate from a medical condition that is a disability and would enable the employee to return and do his/her job with another reasonable accommodation, then leave is a reasonable accommodation. Here though, it was clear that she would not be able to return to work and perform her job and that there really was no reasonable accommodation that would enable her to do so. The fact that Ms. McAllister applied for and received long-term disability benefits (and that she alleged she was disabled in her applications) more or less supports that conclusion and contradicts her contention that she could return to work. Besides, even the EEOC says that indefinite leave is not a reasonable accommodation.

OK, so what are our takeaways? Here are a few:

1. You can rely on a doctor’s opinion as to the employee’s ability to perform essential job functions–especially when the employee offers no evidence to the contrary;
2. This employer had clear policies and communicated clearly with the employee, and did not interfere with her taking leave and getting treatment. In other words, this employer did a lot of things right– and we can all learn from Innovation.
3. This case appears to have involved a lot of clear, detailed documentation– so document, document, document!

Yes, this employer “won”, but please remember that each case turns on its own specific facts, and you, therefore, must, in EEOC-speak “perform an individualized assessment”. This employee was seriously injured and disabled. Many employees, thankfully, are able to return to work after an accident or illness and would be entitled to reasonable accommodations.

Watch the latest video clip in my series, “Ask the Employer’s Lawyer: My Employee Has Exhausted All Her FMLA Leave Time. What do I do?

Watch my television interview on Stop My Crisis with Vivian Gaspar.

Contents of this post are for educational/informational purposes only, are not legal advice, and do not create an attorney-client relationship. Consult with competent employment counsel in the state(s) in which you employ people with your specific questions.

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